Ajay Pal Singh Jadaun v. State of U.P. and another) arising out of Case Crime No
Case Details
Court No. - 65 Case :- CRIMINAL APPEAL No. - 2644 of 2022 Appellant :- Ajay Pal Singh Jadaun Respondent :- State of U.P. and Another Counsel for Appellant :- Abhinav Gaur,Ankit Shukla,Satya Dheer Singh Jadaun Counsel for Respondent :- G.A.,Deepak Dubey,Janardan Prasad Tripathi Hon'ble Sanjay Kumar Singh,J.
Legal Reasoning
Heard Mr. Anoop Trivedi, learned Senior Advocate assisted by Mr. Satya Dheer Singh Jadaun, learned counsel for the appellant, learned Additional Government Advocate for the State of U.P., Mr. Deepak Dubey, learned counsel appearing on behalf of the informant/opposite party no. 2 and perused the record. This criminal appeal under Section 14-A(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant with the prayer to set aside the bail rejection order dated 01.04.2022 passed by learned Special Judge (SC/ST Act), Aligarh in Bail Application No. 1439 of 2022 (Ajay Pal Singh Jadaun vs. State of U.P. and another) arising out of Case Crime No 508 of 2021, under Sections 364, 302, 201, 404, 120-B, 34 IPC and Section 3(2)(v) of SC/ST Act, Police Station Civil Lines, District Aligarh. As per prosecution case in brief, informant Rohan Singh, brother of the deceased has lodged an F.I.R. on 26.11.2021 regarding an incident that took place on 15.11.2021 against unknown person alleging inter-alia that on 17.11.2021, he had lodged a missing report about his brother Nahar Singh at Police Station Civil Lines, District Aligarh but till date, his brother could not be traced out. He suspects that his brother has been kidnapped because he left the house on 15.11.2021 at 06:45 o'clock but did not return to home. It is argued by learned counsel for the appellant that in this case, a missing report was lodged on 17.11.2021 regarding an incident dated 15.11.2021 and thereafter F.I.R. of the said incident was lodged after eight days on 26.11.2021 against unknown persons. For the first time, name of the appellant came into light in the statement under Section 161 Cr.P.C. dated 27.11.2021 of the informant-Rohan Singh, in which he stated inter-alia that he suspects that his brother has been kidnapped by the appellant and Baidya ji @ Mohar Singh because there was a dispute of money between the present appellant and the deceased but no material has been collected by the investigating ofÏcer in this regard and even the basis of his suspicion as well as source of information about the said dispute has also not been disclosed by the informant. Placing the flight tickets of the appellant, it is next submitted that from 23.11.2021 to 03.12.2021, appellant was in Goa and he was arrested by the police from Goa on 03.12.2021. Thereafter, on 14.12.2021, Mohar Singh was arrested and it is alleged that he, in his confessional statement, disclosed his involvement along with the appellant and his nephew Pankaj Jadaun in committing the murder of deceased. Thereafter, on 14.12.2021, on the pointing out of co-accused Mohar Singh, one decomposed dead body was recovered by digging the soil in the south direction of fishing pond, which was identified by the family members of the informant as the dead body of the deceased-Nahar Singh on the basis of white spot, his blue colour shoes and one key of motorcycle. After the said recovery, investigating ofÏcer has asked Praveen nephew of the deceased, to get the DNA examination of the recovered dead body conducted, but he refused by stating that when he asked his counsel about the DNA examination, he said that there is no need for the DNA examination. Much emphasis has been given by contending that the identity of the recovered decomposed dead body is wholly doubtful otherwise there was no valid reason for the complainant's side to refuse for getting the DNA test of the decomposed dead body conducted. It is argued that as per alleged confessional statement of the Mohar Singh, deceased died due to gun shot injury caused by Pankaj while as per the confessional statement of Pankaj, he caused injury to the deceased by stick. Referring the postmortem report dated 14.12.2021, it is submitted that no gun shot wound was found on the body of the deceased. The time of death, as mentioned in the postmortem report dated 14.12.2021 is 15 days back, which also does not match to the date of incident i.e. on 15.11.2021, because as per postmortem report, the incident took place on 29.11.2021. On 19.12.2021, police, in order to implicate the appellant, falsely shown the recovery of licencee revolver of the deceased on the pointing out of the appellant from an open place which can be easily planted after taking the revolver of the deceased from his family members. It is also pointed out that recovery of revolver has been shown by the police on 19.12.2021 but three days before the recovery, news for recovery of revolver had already been published on 16.12.2021 in news paper, which is also indicative of the false implication of the appellant. As per the CDR of the appellant, there was no prior telephonic conversations between the appellant and co-accused Mohar Singh and Pankaj. The call details of the appellant reveals that he was having conversation with one Sriram Saini, who has nothing to do with the matter and no allegation has been levelled against him by Mohar Singh and Pankaj in their confessional statements but he has also been falsely implicated later on. On the strength of aforesaid facts, main substratum of argument of learned counsel for the appellant is that except the confessional statement of Mohar Singh and Pankaj Singh in police custody, there is no direct or indirect corroborative and credible material against the appellant. It is a case of circumstantial evidence and complete chain of circumstantial evidence is missing. Lastly, it is submitted by the learned counsel for the appellant that there is no chance of the appellant fleeing away from the judicial process or tampering with the prosecution evidence. Appellant has no criminal history to his credit and is languishing in jail since 03.12.2021 and in case, appellant is released on bail, he will not misuse the liberty of bail and cooperate with the trial. Per contra, learned A.G.A. and Mr. Deepak Dubey learned counsel appearing on behalf of the informant/opposite party no. 2 opposed the prayer for bail by contending that the statement under Section 161 Cr.P.C. of the informant was recorded on 27.11.2021 in which he has taken the name of the appellant- Ajay Pal Singh Jadaun stating inter- alia that there was a dispute of money between the appellant and Nahar Singh, therefore, he suspects that his brother has been abducted in collusion with Mohar Singh. On 14.12.2021, one dead body was recovered from the pond, which was identified by the son of the informant as the body of the deceased. Thereafter, on 14.12.2021, Mohar Singh was arrested and he, in his confessional statement, stated inter-alia that he alongwith the appellant Ajay Pal Singh Jadaun and his nephew Pankaj Jadaun made a plan to eliminate the deceased Nahar Singh and to carry out this work, he called Nahar Singh by his cell-phone near graveyard situated at the station road and on the pretext of going to Hathras, he made him sit in the car, thereafter, headed towards Etah, Chungi. Appellant and Pankaj was sitting at the rear seat of the car. Pankaj took out a pistol and shot Nahar Singh on his head due to which he died on the spot and dead body was kept for whole day in the car and later on dead body of Nahar Singh was buried near a pond after giving Rs. 55,000/- to the labourers Indal and Honey. Pursuant to the confessional statement of Mohar Singh, co-accused Pankaj was arrested on 16.12.2021 and he has also disclosed the modus-operandi adopted by the accused persons in eliminating the deceased and also disclosed the active involvement of the appellant in conspiracy. Much emphasis has been given by contending that Mohar Singh, in his confessional statement, has disclosed that he had taken an amount of Rs. 1,50,000/- from the appellant to eliminate Nahar Singh and there was no occasion for the Pankaj who is nephew of the appellant to make allegation against the appellant, therefore there is a strong motive against the appellant on the basis of confessional statement of Mohar Singh and Pankaj, therefore bail application of the appellant is liable to be rejected. Having heard the submissions of learned counsel for the parties and examined the record, I find that there is no eye witness of the incident. The appellant is not named in the F.I.R. whereas same has been lodged on 26.11.2021 after ten days of the incident dated 15.11.2021. First time informant, in his statement under Section 161 Cr.P.C. has taken the name of the appellant and co-accused Baidya ji @ Mohar Singh and that too on the basis of suspicion that there was a dispute of money between the deceased and appellant but he did not provide any material or detailed facts during investigation in order to establish the money dispute between them, therefore, there is no material on record in support of alleged motive. It is also an admitted fact that a decomposed unknown dead body was recovered which was identified by the family members of the deceased as the body of the deceased but they did not agree for DNA examination of the dead body after taking legal consultation with his counsel. So far as the recovery of revolver on 19.12.2021 at the pointing out of the appellant is concerned, I also find that there is no independent witness of the said recovery and it is not a case of prosecution that the revolver of the deceased was also missing. Publication of recovery of revolver in question in news paper on 16.12.2021 three days prior to the alleged recovery also indicates that some thing is fishy in the matter and the said recovery does not inspire confidence. As per the postmortem report, cause of death of the deceased is Intracranial haemorrhage as a result of blunt force impact sustained to head. Time of incident also do not match with the date of incident as mentioned in the F.I.R. There is major contradiction in the alleged confessional statement of Mohar Singh and Pankaj with regard to manner and weapon of assault. As per alleged confessional statement of Mohar Singh, deceased died due to gun shot injury caused by Pankaj whereas no gun shot injury was found on the body of the deceased. It is also admitted fact that as per CDR collected by the investigating ofÏcer, there was no telephonic conversation of the appellant with co-accused Mohar Singh and Pankaj. It is an admitted case of the prosecution that role of causing injury has been attributed to co-accused Pankaj. Main allegation against the appellant is that he got the brother of the informant eliminated through co-accused Mohar Singh and Pankaj as such it is a case of circumstantial evidence as there is no direct evidence against the appellant. The confessional statement of accused in police custody is also inadmissible in evidence. It is well settled that in cases of circumstantial evidence, entire chain of circumstances on which conclusion of guilt is to be drawn, should be fully established and should not leave any reasonable ground of doubt. The further details relating to the incident need not be referred to herein since the allegations and the defence thereto is still open to be urged by the parties in the trial Court. Having regard to the facts and circumstances of the case, submissions of learned counsel for the parties as mentioned above and keeping in view the complicity of the accused and evidence collected during investigation, this Court is of the view that the appellant has made out a case for bail. Accordingly, the appeal is allowed and the impugned order rejecting the bail application of the appellant is set- aside. Let the appellant Ajay Pal Singh Jadaun involved in the above case be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions:- (i) The appellant will not tamper with the evidence during the trial. (ii) The appellant will not pressurize/ intimidate the prosecution witness. (iii) The appellant will appear before the trial court on the date fixed, unless personal presence is exempted. (iv) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. (v) The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police ofÏcer or tamper with the evidence. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court. It is clarified that the observations made herein above are limited to the extent of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence to be adduced uninfluenced by anything observed in the order. Order Date :- 23.8.2022 Saurabh Digitally signed by SAURABH KUMAR Date: 2022.08.26 14:43:04 IST Reason: Location: High Court of Judicature at Allahabad